AI Structured Summary
Not yet generated for this judgment
Judgment
Heard the learned counsel for the petitioners and the learned High Court Government Pleader for respondent No.2. Respondent No.1 and his
counsel are remained absent.
Respondent No.1 has filed a private complaint in PCR No.1547/2016. The learned Magistrate has referred the complaint for investigation
under Section 156(3) of Cr.P.C. to the jurisdictional police for investigation and report. The said order of referring the complaint to the police is
called in question before the Court. Though the learned counsel has also challenged the reference order on various other grounds, in my opinion the
order is not technically sound. In view of the decision rendered by the Apex Court reported in (2015)6 SCC 287 in the case of PRIYANKA
SRIVASTAVA AND ANOTHER Vs. STATE OF UTTAR PRADESH AND OTHERS, the Apex Court has categorically observed at
paragraphs 30 and 31 in the following manner:
In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned
Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility
whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing
orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India.
But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section
156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving
a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious
and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already
stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are
compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence
cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are
being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
In view of the above said dictum of the Apex Court, it is clear that the complainant has to file an affidavit about the efforts made by him under
Sections 154(1) and 154(3) of Cr.P.C. and also the affidavit should contain the truthfulness and the contents of the complaint. In the absence of
such affidavit being filed, the Magistrate gets no jurisdiction to refer the private complaint for investigation under Section 156(3) of Cr.P.C.
The learned counsel has strongly contended before the Court that even considering the entire contents of the complaint there is no allegations
which constitute any offence under the provisions of Sections 403, 406, 415 r/w 34 of IPC. I do not want to express anything so far as this aspect
is concerned., because it is the jurisdictional Magistrate, who has to apply his judicious mind to find out whether there are any allegations in the
complaint which constitute any offence against the petitioners and thereafter pass appropriate orders in accordance with law. The Magistrate has to
go through the decision noted above and can take appropriate action in accordance with law. Therefore, the reference order is liable to be
quashed and consequently registration of the First Information Report and all further proceedings therein are required to be quashed. Hence, the
following
ORDER
The petition is allowed. The order passed by the learned Magistrate dated 23.2.2016 referring the complaint under Section 156(3) of Cr.P.C. and
registration of First Information Report in Crime No.63/2017 and all further investigation therein are hereby quashed. The Magistrate can pass
appropriate orders in accordance with law on the complaint lodged by respondent No.1 taking into consideration the observation of the Hon''''ble
Apex Court in the above said case.